Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-36514             August 18, 1932
FRANCISCO BALON, protestant-appellant,
vs.
MANUEL MORENO, protestee-appellee.
Julian Ocampo, Baldomero M. Lapak and Porfirio B. Guinto for
appellant.
J. M. Calinog, J. D. Zenarosa, Agustin Lukban, Gabriel Pimentel,
Victor de los Santos, Laurel, Del Rosario & Lualhati and the appellee
in behalf of the latter.
VICKERS, J.:
This is an appeal from a judgment of the Court of First Instance of
Camarines Norte in an election contest filed by Francisco Balon
against Manuel Moreno for the office of member of the provincial
board of Camarines Norte.
In the general election held in the Province of Camarines Norte on
June 2, 1931, there were four candidates for the offices of members
of the provincial board, namely: Simeon Garfin, Manuel Moreno,
Francisco Balon, and Gabriel Pimentel. On June 6, 1931, the
provincial board of canvassers of Camarines Norte certified the four
candidates for the offices of members of the provincial board to have
obtained the following votes:
Votes Simeon Garfin 3,707

Manuel Moreno 3,619

Francisco Balon 3,563

Gabriel Pimentel 2,920

and proclaimed Simeon Garfin and Manuel Moreno as members elect

of the provincial board of Camarines Norte.
On June 19, 1931, Francisco Balon filed a protest against the election
of Manuel Moreno, and alleged that the election inspectors had
committed the following irregularities, illegal acts, and frauds in the
municipalities of Basud, Daet, Talisay, Labo, San Vicente, Indan and
Paracale:
That certain votes (the number being stated) in the precincts (naming
them) of each of the aforesaid municipalities were erroneously and
fraudulently counted in favor of the respondent Manuel Moreno, and
that certain valid votes (the number being stated) in favor of the
petitioner Francisco Balon were erroneously and fraudulently rejected
and not counted in favor of the petitioner;
That if it had not been for said irregularities and frauds the petitioner
would have had 270 votes more, or a total of 3,833 votes, and the
respondent Manuel Moreno would have had 350 votes less or at a
total of 3,269, so that the petitioner Francisco Balon would have been
elected by a plurality of 564 votes over the respondent Manuel
Moreno.
The respondent Manuel Moreno denied all the allegations of the
petition, and as a counter-protest challenged the votes counted in
favor of the petitioner in each of the precincts of the municipalities of
Basud, Daet, Talisay, Labo, San Vicente, Indan, and Paracale, and
alleged that about 100 votes in favor of the respondent were
erroneously not counted for him because he had no watchers in the
precincts of the aforementioned seven municipalities.
He challenged the votes counted by the election inspectors in favor of
the petitioner in precincts 1 and 2 of the municipality of Mambulao
and precincts 1, 2 and 3 of the municipality of Capalonga, and
alleged that certain valid ballots in his favor in said precincts were
erroneously and fraudulently rejected.
He alleged that except for these irregularities and frauds he would
have had 275 votes more, or a total of 3,894 votes, and that the
petitioner Francisco Balon would have had 80 votes less, or a total of
3,483 votes, so that respondent would have been elected by a
plurality of 411 votes.
The trial court appointed two commissioners to examine and account
all the ballots in the precincts in question. The resume of the court's
order is as follows:
Los comisionados haran un resumen por cada precincto
electoral que revisen segun los terminos de esta orden, sobre
los siguientes extremos, a saber:
(a) Sobre el numero total de balotas en la urna blanca o urna
de balotas utiles.
(b) Sobre el numero total de balotas en la urna roja o pequena.
 (c) Sobre el numero total de balotas usadas en cada precinto,
segun el resultado de la revision hecha por los comisionados.
(d) El numero total de estas mismas balotas usadas por cada
precincto, segun se expresa en el acta de los inspectores de
eleccion.
(e) El numero de balotas del recurrente Francisco Balon
objetadas y no objetadas.
( f ) El numero total de balotas del recurrido Manuel Moreno,
objetadas y no objetadas respectivamente.
(g) La cantidad o el numero de balotas no usadas que se
encuentren dentro de las urnas.
The commissioners filed a report on September 7, 1931, and at the
hearing on the same date the parties by stipulation admitted all the
jurisdictional facts. The attorney for the petitioner asked that the
boxes for spoiled ballots of precinct No. 1 of Indan be opened. The
attorney for the respondent objected thereto on the ground that it was
not alleged in the petition that any valid ballots had been placed in the
boxes for spoiled ballots through mistake. The court first overruled
the objection, but after further argument sustained the objection, and
refused to examine the ballots in the boxes for spoiled ballots.
Petitioner's attorney excepted to this ruling and moved for a
reconsideration, which was overruled. The petitioner asked leave to
present witnesses as to certain alleged valid ballots found in the red
boxes, but the trial court refused to receive this testimony.
After examining the ballots in the boxes for valid ballots, the trial
judge found that the respondent had been elected by a plurality of 40
votes over the petitioner. The trial judge subsequently amended his
decision and declared the respondent to be elected by 43 votes.
After the case had been submitted for decision, the petitioner filed a
motion, praying that he be allowed to amend his protest. This motion
was overruled. The petitioner also filed a motion for a new trial which
was denied.
The petitioner appealed from the said decision, and makes the
following assignment of errors:
The court a quo erred:
1. In reconsidering its resolution directing the opening of the
ballot boxes for spoiled ballots and in subsequently denying the
protestant-appellant's petition to reconsider said resolution.
2. In denying the protestant-appellant's petition for a
reconsideration of the court's order denying the motion for
opening the ballot boxes for spoiled ballots for examination,
revision and consideration of the valid ballots cast in favor of
the protestant-appellant and invalidated during the counting by
the election inspectors and placed in the boxes for spoiled
ballots.
3. In denying the protestant-appellant's motion to be allowed to
introduce evidence to prove that those valid ballots cast in favor
of the protestant-appellant and found by the commissioners of
revision appointed by the court were illegally, fraudulently or
erroneously placed by the election inspectors in the small red
boxes for spoiled ballots during the counting.
4. In refusing to consider, determine and adjudicate to the
protestant-appellant ballots Nos. 5 to 11, precinct No. 1, ballot
No. 1, precinct No. 2, ballots Nos. 1 and 2, precinct No. 5,
ballots Nos. 1 and 2, precinct No. 7, of the municipality of
Indan, Province of Camarines Norte; ballots Nos. 6 and 7,
precinct No. 1, ballots Nos. 1 to 7 and 9, precinct No. 2, ballots
Nos. 1 to 4, precinct No. 3, of the municipality of Basud; ballots
Nos. 1 to 7 and 9, precinct No. 1, of the municipality of San
Vicente; ballot No. 1, precinct No. 1, ballots Nos. 4 and 5,
precinct No. 2, of the municipality of Talisay; ballots Nos. 2, 7
and 8, precinct No. 1, ballots Nos. 1, 6, 7 and 24, precinct No.
2, of the municipality of Mambulao; ballot No. 13, precinct No.
7, ballots Nos. 2, 3, and 4, precinct No. 10, ballots Nos. 23 to
37, precinct No. 11, ballots Nos. 12, 13 and 14, precinct No. 12,
of the municipality of Daet; ballot No. 19, precinct No. 1, ballots
Nos. 1, 2, 3, 5, 8, 9, 12, 13, 15, 20, 26, 29 and 39, precinct No.
2, ballot No. 2, precinct No. 3, ballots Nos. 1, 3, 4, 7 and 9,
precinct No. 4, ballot No. 13, precinct no. 5 of the municipality
of Labo; ballot No. 5, precinct No. 1, ballots Nos. 1 and 2,
precinct No. 2, ballots Nos. 1, 2 and 3, precinct No. 3, ballots
Nos. 2 and 9, precinct No. 4, of the municipality of Paracale;
ballots Nos. 2, 6, 12, 13 and 14, precinct No. 1 of the
municipality of Capalonga; in all ninety-nine (99) valid ballots
cast in favor of the said protestant-appellant, but were illegally,
fraudulently or erroneously placed by the election inspectors in
the small red boxes for spoiled ballots where they were found
by the commissioners of revision.
5. In declaring that the ballots found in the small red boxes for
spoiled ballots and claimed by the protestant- appellant as valid
votes cast in his favor were marked "spoiled ballots" and signed
at the back by the election inspectors.
6. In denying the protestant-appellant's motion to amend in its
form his motion of protest.
7. In rejecting the ballots Nos. 188, 194, 195, 196 and 203, of
precinct No. 1, ballots Nos. 143, 157, and 158, of precinct No.
2, ballots Nos. 180 and 188, ballots Nos. 169 and 170, of
precinct No. 4, ballot, ballot No. 140 of precinct No. 5, ballot No.
153, of precinct No. 7, ballots Nos. 113, 117 and 128 of precinct
No. 8, of the municipality of Indan, Province of Camarines
Norte; ballot No. 145 of precinct No. 2, of the municipality of
San Vicente, ballots Nos. 174 and 185 of precinct No. 2, ballots
Nos. 100, 102 and 109 of precinct No. 3, ballot No. 1 of precinct
No. 4, of the municipality of Talisay; ballots Nos. 13, 16 and 23
of precinct No. 2, of the municipality of Mambulao; ballot No. 91
of precinct No. 1, ballot No. 30 of precinct No. 2 of the
municipality of Capalonga; ballots Nos. 27 and 28 of precinct
No. 1, ballots Nos. 1 and 5, of precinct No. 3, ballot No. 102 of
precinct No. 5, ballot No. 145 of precinct No. 6, ballots Nos. 155
and 156 of precinct No. 10, ballot No. 148 of precinct No. 11, of
the municipality of Daet; ballot No. 5 of precinct No. 4 of the
municipality of Labo; ballot No. 87 of precinct No. 1, of the
municipality of Paracale; in all 47 valid ballots cast in favor of
the protestant.
8. In not admitting ballot No. 162 of precinct No. 1, ballot No.
170 of precinct No. 2, ballot No. 148 of precinct No. 6, ballot
No. 222 of precinct No. 8, of the municipality of Indan, Province
of Camarines Norte; ballot No. 193 of precinct No. 1, ballot No.
51 of precinct No. 2, ballot No. 124 of precinct No. 3, of the
municipality of Daet; in all 7 valid ballots cast in favor of the
protestant-appellant.
9. In admitting and counting the ballots Nos. 123, 124 and 126,
of precinct No. 1, ballots Nos. 174 and 176 of precinct No. 3,
ballots Nos. 206, 207 and 208 of precinct No. 4, ballots Nos.
129, 131 and 133 of precinct No. 5, ballots Nos. 191, 192, 193
and 194 of precinct No. 7, ballots Nos. 207 to 211, 214, 215,
216 and 218, of precinct No. 8, of the municipality of Indan;
ballots Nos. 166 and 169 of precinct No. 1, ballots Nos. 165,
168, 170, 171, 172, 173 and 175 of precinct No. 2, of the
municipality of Basud; ballots Nos. 154, 156, and 157 of
 precinct No. 1 of the municipality of San Vicente, ballot No. 167
of precinct No. 2, ballots Nos. 121 to 130 of precinct No. 3, of
the municipality of Talisay; ballot No. 122 of precinct No. 1,
ballot No. 139 of precinct No. 2, of the municipality of
Mambulao; ballot No. 133 of precinct No. 1, ballots Nos. 171,
172, 221, 222 and 223, of precinct No. 2, ballots Nos. 151, 153,
154, 155 and 156 of precinct No. 5, ballots Nos. 172 and 175 of
precinct No. 6, ballots Nos. 44 and 45 of precinct No. 7, ballots
Nos. 137 to 140 of precinct No. 8, ballot No. 187 of precinct No.
9, ballots Nos. 130, 131, 132, 133 and 135 of precinct No. 10,
of the municipality of Daet; ballot No. 148 of precinct No. 1,
ballot No. 10 of precinct No. 2, ballot No. 1 of precinct No. 3,
ballot No. 1 of precinct No. 4, ballot No. 258 of precinct No. 5 of
the municipality of Labo; ballot No. 148 of precinct No. 3, ballot
No. 77 of precinct No. 5, of the municipality of Paracale; in all
80 ballots in favor of the protestee-appellee.
10. In admitting and counting ballot No. 146 of precinct No. 5,
ballots No. 134 and 135 of precinct No. 8 of the municipality of
Indan; ballots Nos. 122 and 123 of precinct No. 3 of the
municipality of Basud; ballot No. 216 of precinct No. 1 of the
municipality of Mambulao, in favor of the protestee-appellee.
11. In adjudicating and counting ballot No. 171 of precinct No. 3
ballots Nos. 134 and 135 of precinct No. 8, of the municipality
of Indan; ballot No. 216 of precinct No. 1 of the municipality of
Mambulao, in favor of the protestee- appellee, which ballots
were already adjudicated and counted in his favor by the
commissioners of revision, but which were claimed by the
protestant-appellant as also containing valid votes in favor of
the said protestant-appellant.
12. In declaring the protestee-appellee legally elected member
of the provincial board of Camarines Norte with a majority of
forty-three (43) votes over the protestant- appellant.
13. In not declaring the protestant-appellant the one duly and
legally elected member of the provincial board of Camarines
Norte.
14. In denying the protestant-appellant's motion for a new trial.
The first assignment of errors relate to the refusal of the trial court to
examine the ballots in the boxes for spoiled ballots and to receive
evidence with respect thereto. We think the trial court erred in this
matter. When the petitioner alleged in his protest that irregularities,
illegal acts, and fraud had been committed in the precincts of the
different municipalities named in the protest, and that certain valid
ballots in favor of the petitioner had been erroneously and
fraudulently rejected and not counted for him, it was incumbent upon
the court to examine all the ballots in the precincts in question. It was
not necessary for the petitioner to allege that certain valid ballots had
been erroneously or fraudulently placed in the boxes for spoiled
ballots. Section 479 of the Election Law (Act No. 3387) provides that
"Upon petition of an interested party, or of its own accord if the
interests of justice require it, said court shall forthwith cause the
registration lists, ballot boxes, ballots, and other documents used at
such election to be brought before it and examined, and to appoint
the necessary officers therefor and to fix their compensation, which
shall not exceed five pesos per diem each and shall be payable in the
first instance out of the provincial treasury." The law does not except
therefrom the ballot boxes for spoiled ballots or the ballots therein
contained, and it clearly implies that the court shall cause all the
registration lists, ballot boxes, ballots and other documents used at
such election to be brought before it and examined. It is true that
whereas section 479 of Act No. 2711 provided that the court shall
forthwith cause the registration list and all ballots used at such
election to be brought before it and examined, the word "all" has been
omitted from section 479 of Act No. 3387, but it is not to be inferred
therefrom that only the ballots in the boxes for valid ballots are to be
examined by the court. When the law provides that the court shall
cause the registration lists, ballot boxes, ballots, and other documents
used at such election to be brought before it and examined, it
undoubtedly means all the registration lists, ballot boxes, ballots, and
other documents used at the election (See De la Merced vs. Revilla
and Camacho, 40 Phil., 190).
The ballots found in the boxes for spoiled ballots are presumed to be
spoiled ballots, and if it was the duty of the court to examine said
ballots, the petitioner had, of course, the right to present evidence
with respect thereto.
As already stated, the trial judge directed the commissioners to
examine all ballots and they did so, but the trial judge subsequently
refused to examine the ballots in the red boxes or to receive evidence
respecting said ballots. It further appears from the decision that, after
the case was submitted for decision, the trial judge examined some of
the ballots in the red boxes in the absence of the parties and found
them to be marked "spoiled ballots". It was error for the trial judge to
examine these ballots in the absence of the parties and to base a
finding thereon. (Denver Omnibus & Cab Co. vs. Ward Auction Co.,
47 Colo., 446; and Moran, The Law of Evidence in the Philippine
Islands, page 114.)
As to appellant's sixth assignment of errors, we think that his motion
to amend his protest, which was filed after the case had been
submitted for decision, was filed too late.
In the seventh assignment of errors, the petitioner alleges that the
trial court erred in rejecting the following ballots cast in favor of the
petitioner:
MUNICIPALITY OF INDAN
Precinct No. 1. — Ballot No. 188, reading "Palncisco Valon", should
have been admitted under the rule of idem sonans.
Ballot No. 194, reading "Prancis Balu." The voter evidently intended
to vote for Francisco Balon, but he did not have room to place the
final "n" in the surname on the ballot. "U" and "o" are frequently
interchanged.
Ballot No. 195, reading, "Franco Palon", should be admitted as a
ballot for Francisco Balon, Franco being an abbreviation of Francisco
and Palon being read for Balon under the rule of idem sonans.
Ballot No. 196, reading "Francu Balun," should be admitted for the
same reasons.
Ballot No. 203, reading "Francisco Balu". The surname is not
complete, but the Christian name of the petitioner is written correctly,
and there being no other candidate with the Christian name of
Francisco, it may be safely inferred that the intention of the voter was
to vote for Francisco Balon.
In the case of Namocatcat vs. Adag (52 Phil., 789), this court held
that where it appears that no other candidate for the same office has
the same Christian name and surname, or the same initials, and the
voter's intention to vote for the candidate with the Christian name and
the initial of the surname which he writes in his ballot is manifest, the
will of said voter must be complied with.
Precinct No. 2. — Ballot No. 143, reading "Prancisco B", should be
counted for the petitioner Francisco Balon in accordance with the
aforementioned decision in the case of Namocatcat vs. Adag.
Ballot No. 157, reading "Pansco Balun", should be counted for the
petitioner Francisco Balun under the rule of idem sonans.
Ballot No. 158, reading "Francisco Ban", should be counted for the
petitioner in accordance with the rule laid down in the Namocatcat-
Adag case.
Precinct No. 3. — Ballot No. 180, reading "Pansico Balino", was
properly rejected.
Ballot No. 188, reading "Franco Balun". The surname is not clearly
written, but it is evident that it was the intention of the voter to write
the name of Francisco Balon.
Precinct No. 4. — Ballot No. 169, reading "Prancisco Babon". It is
evident that it was the intention of the voter to write the name of
Francisco Balon.
Ballot No. 170, reading "Francisco Ba-l". The surname is incomplete,
but the letters "Ba-l" appearing on the ballot show the intention of the
voter to vote for Francisco Balon.
Precinct No. 5. — Ballot No. 140. Both the Christian name and
surname are illegible. This ballot was properly rejected.
Precinct No. 7. — Ballot No. 153, reading "Frans Balon". The
surname is correctly written, and the Christian name as written is
evidently intended for Francisco. This ballot should be counted for the
petitioner.
Precinct No. 8. — Ballot No. 113, reading "Pasidu Balu" should have
been counted for Francisco Balon. Although the final "n" in the
surname was omitted, it was undoubtedly the intention of the voter to
write "Balun"; the Christian name as written was undoubtedly
intended for Francisco.
Ballot No. 117, reading "Fanceco Balon". The surname being written
correctly, and the Christian name as written being evidently intended
for Francisco, this ballot should have been counted for the petitioner.
Ballot No. 128, reading "Parnsisco balna". The surname as written
being quite distinct from that of Balon, this ballot was properly
rejected.
MUNICIPALITY OF SAN VICENTE
Precinct No. 2. — Ballot No. 145, reading "Cekoy Balon". The
surname being written correctly and Cekoy being a nickname for
Francisco, this ballot should have been counted for the petitioner.
MUNICIPALITY OF TALISAY
Precinct No. 2. — Ballot No. 174, reading "Prancisco Balon". "F" and
"P" being frequently interchanged, it was evidently the intention of the
voter to vote for Francisco Balon.
Ballot No. 185, reading "F. Barpu". The surname as written bears no
resemblance to that of the petitioner, and this ballot was properly
rejected.
Precinct No. 3. — Ballot No. 100, reading "P. Balu". Although the
final "N" of the surname is omitted, it was undoubtedly the intention of
the voter to write "Balun", and "P" and "F" being frequently
interchanged, this ballot should have been counted for Francisco
Balon.
Ballot No. 102, reading "P. Balu", should have been admitted for the
same reason.
Ballot No. 109. The Christian name and the surname as written being
illegible, this ballot was properly rejected.
Precinct No. 4. — Ballot No. 1. The surname as written being illegible
this ballot was properly rejected.
MUNICIPALITY OF MAMBULAO
Precinct No. 2. — Ballot No. 13, reading "Francisco "Ba—". The
surname as written is illegible, but as the Christian name is correctly
written and the surname begins with a capital "B" and is followed by
the letter "a", we think it is sufficiently clear that the elector intended
to vote for Francisco Balon.
Ballot No. 16, reading "Farco Balon". As the surname is clearly
written and as Farco is probably a nickname for Francisco, this ballot
should have been counted for the petitioner.
Ballot No. 33, reading "Balon". Only the surname is written, but there
being no other candidate of the name of Balon, it is clear that it was
the intention of the voter to vote for the petitioner.
MUNICIPALITY OF CAPALONGA
Precinct No. 1. — Ballot No. 91, reading "Francisco Balce". As the
surname in this case is distinct from that of the petitioner and there is
no resemblance in the sound, this ballot was properly rejected.
Precinct No. 2. — Ballot No. 30, reading "Simeon Balon". This is a
complete and distinct name from that of the petitioner and the ballot
should be rejected (Lucero vs. De Guzman, 45 Phil., 852).
MUNICIPALITY OF DAET
Precinct No. 1. — Ballots Nos. 27 and 28 are completely illegible, and
were properly rejected.
Precinct No. 3. — Ballot No. 1. This ballot was rejected because of
the names written on the back thereof.
Ballot No. 5, reading "Francisco Ba--". It was evidently the intention of
the elector to vote for the petitioner, although the surname is not
complete.
Precinct No. 5. — Ballot No. 102, reading "Francisco Banglon". This
ballot should have been counted for the petitioner under the rule
of idem sonans.
Precinct No. 6. — Ballot No. 145, reading "Paranco Balon". Although
badly written, it is sufficiently clear that the voter intended to write the
name of Francisco Balon.
Precinct No. 10. — Ballot No. 155, reading "Simeon Balon". As this
name is complete and distinct from that of the petitioner this ballot
was properly rejected.
Ballot No. 156. The name as written is illegible, and this ballot was
properly rejected.
Precinct No. 11. — Ballot No. 148, reading "Cemion Balon." As this
name is complete and distinct from that of the petitioner, this ballot
was properly rejected.
MUNICIPALITY OF LABO
Precinct No. 4. — Ballot No. 5, reading "Francisco Balo". Although
the final "n" in the surname is omitted, it was evidently the intention of
the voter to vote for Francisco Balon.
MUNICIPALITY OF PARACALE
Precinct No. 1. — Ballot No. 87. (We were unable to find this ballot.)
In the eight assignment of errors, the petitioner alleges that the trial
erred in not admitting the following ballots cast in favor of the
petitioner:
MUNICIPALITY OF INDAN
Precinct No. 1. — Ballot No. 162. The name is completely illegible
and this ballot was properly rejected.
Precinct No. 2. — Ballot No. 170. The name as written is completely
illegible, and this ballot was properly rejected.
Precinct No. 6. — Ballot No. 148, reading "Micong Liban". The name
as written is distinct from that of the petitioner, and this ballot was
properly rejected.
Precinct No. 8. — Ballot No. 222. The name as written is illegible, and
this ballot was properly rejected.
MUNICIPALITY OF DAET
Precinct No. 1. — Ballot No. 193. The name is illegible, and this ballot
was properly rejected.
Precinct No. 2. — Ballot No. 51, reading "p. balun". As "p" and "f"
frequently interchanged and Balon is frequently written balun, this
ballot should have been counted for the petitioner.
Precinct No. 3. — Ballot No. 124. The Christian name is illegible and
the surname is distinct from that of the petitioner. This ballot was
properly rejected.
In the ninth assignment of errors, the petitioner alleges that the
following ballots should not have been admitted and counted in favor
of the respondent Manuel Moreno:
MUNICIPALITY OF INDAN
Precinct No. 2. — Ballot No. 123, reading "Mannil Marieno." This
ballot was properly counted for the respondent, as it clearly appears
that the intention of the voter was to vote for Manuel Moreno.
Ballot No. 124. This ballot was properly counted for the respondent
for the same reason.
Ballot No. 126, reading "M. Morino". This ballot was properly counted
for the respondent.
Precinct No. 3. — Ballot No. 174, reading "Bocalis Manil Morino".
This ballot was objected to on the ground that it contains
distinguishing marks. The objection is not well taken, the alleged
distinguishing marks being apparently the word "Bocalis".
Ballot No. 176 was objected to on the same ground, but what is
alleged to be distinguishing marks is merely a smear caused by an
indelible pencil.
Precinct No. 4. — Ballot No. 206, reading "Manulro Moreno". In this
ballot the surname is correctly written, and Manulro is intended for
Manolo, a nickname for Manuel. This ballot was correctly counted for
the respondent.
Ballot No. 207. Although the surname is not very legible, is was
evidently the intention of the voter to vote for Manuel Moreno.
Ballot No. 208. This ballot was objected to because of distinguishing
marks which were not specified. The objection is not well taken.
Precinct No. 5. — Ballots Nos. 129, 131 and 133 were objected to on
the ground that the names appearing on the ballots are the names of
other persons. The objection is not well taken.
Precinct No. 7. — Ballots Nos. 191, 192, 193 and 194. These ballots
were objected to on the ground that the name appearing on each of
these ballots is not the name of the respondent, but the name of
another person. The objection is not well taken.
Precinct No. 8. — Ballots Nos. 207, 208, 210, 211, 214, 215, 216 and
218. These 8 ballots were objected to on the ground that the name of
the person voted for therein is different from that of the respondent.
The objection is not well taken as it appears from the ballots that it
was the intention of the voters to vote for the respondent.
MUNICIPALITY OF BASUD
Precinct No. 1. — Ballot No. 166, reading "Mannil Morelno". This
ballot was properly counted for the respondent.
Ballot No. 169, reading "Manuel Mo". Although the surname is not
complete, it was evidently the intention of the voter to vote for Manuel
Moreno.
Precinct No. 2. — Ballot No. 165. This ballot is rejected because the
surname as written is illegible.
Ballot No. 168. Although badly written, it appears that it was the
intention of the voter to vote for the respondent.
Ballot No. 170, reading "Man Morio". This ballot is rejected, because
both the Christian name and surname are different from those of the
respondent.
Ballot No. 171, reading "M. Moreno". The objection is not well taken
as to this ballot.
Ballot No. 172. This ballot is objected to on the ground that the name
is not legible. The objection is not well taken as to this ballot.
Ballot No. 173. The surname as written is illegible. This ballot should
be rejected.
Ballot No. 175. Although the Christian name and surname are badly
written, they are clearly intended for Manuel Moreno.
MUNICIPALITY OF SAN VICENTE
Precinct No. 1. — Ballot No. 154. Although badly written, it appears
that it was the intention of the voter to vote for the respondent.
Ballot No. 156, reads "M. Manuel", and is rejected, because the
surname as written is distinct from that of the respondent.
Ballot No. 157, reading "Manil Moreno" was properly counted for the
respondent.
MUNICIPALITY OF TALISAY
Precinct No. 2. — Ballot No. 167, reading "Minuel Moreno" was
properly counted for the respondent.
Precinct No. 3. — Ballot No. 121, reading "Manuel Mo". Although the
surname is not complete, this ballot should be counted for the
respondent.
Ballot No. 122. As the name is illegible, this ballot is rejected.
Ballot No. 123, reading "Maul Moreno" was properly counted for the
respondent.
Ballot No. 124, reading "Unil Murino" was properly counted for the
respondent.
Ballot No. 125, reading "Man Morino" was properly counted for the
respondent.
Ballot No. 126, reading "Manali Morino" was properly counted for the
respondent. Ballot No. 127, reading "Manoel Moreno" was properly
counted for the respondent. Ballot No. 128, reading "Mamel Moreo"
was properly counted for the respondent under the rule of idem
sonans.
Ballot No. 129. The surname is correctly written, and the first two
syllables of the Christian name, which is "Manu", are those of the
respondent. This ballot was therefore properly counted for the
respondent.
Ballot No. 130, reading "Manoel Morno" was evidently intended for
Manuel Moreno.
MUNICIPALITY OF MAMBULAO
Precinct No. 1. — Ballot No. 122, reading "Moreno was properly
counted in favor of the respondent, there being no other candidate
with the name of Moreno.
Precinct No. 2. — Ballot No. 139, reading "Manel Moru". Although the
surname as written is not complete, it appears to have been the
intention of the voter to vote for Manuel Moreno.
MUNICIPALITY OF DAET
Precinct No. 1. — Ballot No. 133, reading "Manuel Murno" was
properly counted for the respondent.
Precinct No. 2. — Ballot No. 171, reading "Manoel Moreno" was
properly counted for the respondent.
Ballot No. 172, reading "Menuel Moreno" was properly counted in
favor of the respondent.
Ballot No. 221. In the case of this ballot, the voter turned the ballot
upside down and wrote the name of Manuel Moreno and six other
names in the spaces intended for municipal councilors. This ballot is
rejected.
Ballot No. 222. The voter did not fill out the spaces in the ballot, but
wrote the names on the reverse side of the ballot. This ballot is
rejected.
Ballot No. 223, reading "Manuel Moreno". The objection to this ballot
is obviously without merit.
Precinct No. 5. — Ballot No. 151, reading "Manoel Moro (or More)".
Although the surname is not complete, it was undoubtedly the
intention of the voter to vote for Manuel Moreno.
Ballot No. 153, reading "Mannil Morio". Although the surname is not
complete, it is evident that it was the intention of the voter to vote for
Manuel Moreno.
Ballot No. 154, reading "Manil Morno", was properly counted for the
respondent under the rule of idem sonans.
Ballot No. 155, reading "M. Morino". The objection to this ballot is not
well taken.
Ballot No. 156, reading "Manoil Muno". It is evident that the intention
of the voter was to vote for Manuel Moreno.
Precinct No. 6. — Ballots Nos. 172 and 175. These ballots were
objected to by the petitioner on the ground that they contain
distinguishing marks. He does not specify what the distinguishing
marks consist of. These ballots were properly counted for the
respondent.
Precinct No. 7. — Ballot No. 44, reading "Manel Mreno". It is evident
that it was the intention of the voter to vote for Manuel Moreno.
Ballot No. 45. The name as written is "Manlo Moroni". This ballot was
properly counted for the respondent.
Precinct No. 8. — Ballots Nos. 138, 139 and 140, reading "Manoel
Moreno", "Manuel Morino" and "Manuel Morino". The objection to
these ballots is without merit.
Precinct No. 9. — Ballot No. 187. As the name is illegible, this ballot
is rejected.
Precinct No. 10. — Ballot No. 130, reading "Manoil Moreno". The
objection as to this ballot is not well taken.
Ballot No. 131, reading "Señorito Manuel". This ballot is rejected.
Ballot No. 132, reading "Don Manuel". This ballot is rejected.
Ballot No. 133, reading "M. Manol". This ballot is rejected, the
surname as written being distinct from that of the respondent.
Ballot No. 135, reading "Moreno Maning", was properly counted for
the respondent.
MUNICIPALITY OF LABO
Precinct No. 1. — Ballot No. 148, reading "Marino Moreno". As the
first name is distinct from the Christian name of the respondent, this
ballot is rejected.
Precinct No. 2. — Ballot No. 10, reading "Manuel No", is rejected.
Although there was sufficient space, the voter did not write anything
further.
Precinct No. 3. — Ballot No. 1. This ballot was objected to by the
petitioner on the ground that it contains a distinguishing mark,
Coupon No. 48, which is not detached. It is the duty of the chairman
of the election inspectors to remove the coupon from the ballot. If
through an oversight the chairman fails to remove the coupon, the
ballot ought not to be invalidated for that reason.
Precinct No. 4. — Ballot No. 1, reading "Manuel Morno". The
objection to this ballot is not well taken.
Precinct No. 5. — Ballot No. 258. This ballot was objected to on the
ground that the name appearing therein is not that of the respondent
and that it has a distinguishing mark. The name on the ballot is
Manoel Moreno, and the first objection, therefore, is without merit.
The petitioner does not specify what the distinguishing mark consists
of. A name written under that of Manuel Moreno has been erased, but
that fact alone is not sufficient to constitute a distinguishing mark.
MUNICIPALITY OF PARACALE
Precinct No. 3. — Ballot No. 148, reading apparently "M. Mrno". It
was clearly the intention of the voter to vote for Manuel Moreno, and
this ballot was properly counted for him.
Precinct No. 5. — Ballot No. 77. This ballot, reading "Morino", was
properly counted for the respondent.
In the tenth assignment of errors, the petitioner alleges that the trial
court erred in admitting and counting the following ballots in favor of
the respondent:
MUNICIPALITY OF INDAN
Precinct No. 5. — Ballot No. 146. This ballot is rejected because the
name of the respondent, Manuel Moreno, is written in the space
opposite the words "Provincial Governor".
Precinct No. 8. — Ballots Nos. 134 and 135. These two ballots were
counted for Manuel Moreno by the commissioners. They were also
claimed by Francisco Balon. In disapproving the claim of Francisco
Balon, the court erroneously adjudicated them to Manuel Moreno,
although they had been previously counted in his favor by the
commissioners.
MUNICIPALITY OF BASUD
Precinct No. 3. — Ballot No. 122. This ballot is objected to on the
ground that the name of the respondent is written in the space
corresponding to the provincial governor. The objection is without any
foundation in fact.
Ballot No. 123. The name of the respondent is written in the space
corresponding to the provincial governor, and this ballot is therefore
rejected.
MUNICIPALITY OF MAMBULAO
Precinct No. 1. — Ballot No. 216. This ballot was counted in favor of
Manuel Moreno by the commissioners. It was also claimed by
Francisco Balon. In rejecting the claim of Balon, the court erroneously
counted it in favor of Moreno a second time.
ELEVENTH ASSIGNMENT OF ERROR
In this assignment of error the appellant maintains that ballot No. 171
of precinct No. 3 of the municipality of Indan and ballots Nos. 134 and
135 of precinct No. 8 of the municipality of Indan should not be
counted in favor of the appellee. Precinct No. 3 is clearly a clerical
error and should read precinct No. 2. Ballot No. 171 was counted in
favor of Manuel Moreno by the commissioners. It does not appear
from the decision, as alleged by the appellant, that it was counted by
the court a second time in favor of Moreno.
Appellant's assignment of errors as to ballots Nos. 134 and 135 of
precinct No. 8 of the municipality of Indan is a repetition of his tenth
assignment of errors as to said ballots.
As to ballot No. 216 of precinct No. 1 of the municipality of
Mambulao, this is also a repetition of appellant's tenth assignment of
errors.
The respondent did not appeal from the decision of the trial court or
make any assignment of errors, and it is therefore unnecessary to
examine the ballots adjudicated to the petitioner by the lower court.
In accordance with the foregoing findings, it results that 25 of the
ballots mentioned in the seventh assignment of errors that were
rejected by the lower court should have been counted in favor of the
petitioner, and that one of the ballots mentioned in the eighth
assignment of errors should have been counted in favor of the
petitioner, making a total of 26 votes to be added to the votes of the
petitioner.
Under the ninth assignment of errors, 13 votes adjudicated by the
lower court to the respondent should be deducted, and 5 votes under
the tenth assignment of errors, making a total of 18 votes to be
deducted from those adjudicated by the trial court to the respondent.
The trial court adjudicated to the petitioner Francisco Balon 3,537
votes, and to the respondent Manuel Moreno 3,580 votes. If we add
26 votes to those adjudicated to Francisco Balon and deduct 18 votes
from those adjudicated to Manuel Moreno, the result is that Francisco
Balon will have 3,563 votes and Manuel Moreno 3,562. The plurality
of the petitioner over the respondent is therefore one vote.
In view of this result, it is unnecessary to order a new trial because of
the refusal of the trial court to examine the ballots in the boxes for
spoiled ballots and to receive evidence with respect thereto, or for
this court to examine said ballots.
The decision of the trial court is reversed, and the petitioner
Francisco Balon is declared elected with a plurality of one vote. The
respondent will pay the costs.
Avanceña, C.J., Street, Malcolm, Villamor, Ostrand, Villa-Real, Abad
Santos, Hull, Imperial and Butte, JJ., concur.
RESOLUTION
September 16, 1932
VICKERS, J.:
On September 1, 1932, Messrs. Laurel, Del Rosario and Lualhati,
who had not previously appeared in this case, filed as attorneys for
the protestee and appellee a motion for the reconsideration of the
decision of August 18, 1932, by which the protestant and appellant
was declared elected with the plurality of one vote.
The first ground of the motion for reconsideration is that the lower
court erred in the summing up of the votes adjudicated or that should
have been adjudicated to the protestee, Manuel Moreno, and that
should have been declared elected by a plurality of 45 votes instead
of 43 votes. It appears from the record that this question was raised
in the lower court, and that the plurality of Manuel Moreno was
increased from 40 to 43 votes. Manuel Moreno did not appeal from
the decision of the trial court or make any assignment of error in his
brief. We therefore decline to consider this question at this stage of
the proceedings.
The second ground of the motion for reconsideration is that ballots
Nos. 100 and 102 of precinct No. 3 of Talisay and ballot No. 51 of
precinct No. 2 of Daet were erroneously counted for the protestant
and appellant Francisco Balon, because they are written with the
initial "P" instead of "F". Upon a careful reexamination of ballot No.
102 of precinct No. 3 of Talisay and ballot No. 51 of precinct No. 2 of
Daet we find that the initial preceding the surname of the protestant
on these ballots is "F" and not "P". It was erroneously stated in the
decision that these ballots read "P. Balu" and "p. Balun" instead of "F.
Balu" and "f. balun", because the initial on each of these ballots was
written in such a way that it appeared at first sight to be a "P". As to
ballot No. 100 of precinct No. 3 of Talisay, there exists some doubt as
to whether the initial preceding the surname of "Balu" should be read
as "P" or "F", but we are of the opinion that this ballot was properly
counted for Francisco Balon. There is no F, strictly speaking, in
Philippine dialects, and Spanish words beginning with F are written in
Philippine dialects with P for example: Pilipino. Furthermore in
Spanish itself words now beginning with F were formerly written with
Ph, for instance: Philipinas. "P" is therefore equivalent to "F" when it
substituted for F at the beginning of a proper name. It probably would
not be denied by anybody that Prancisco is equivalent to Francisco.
In the case at bar there is no other candidate by the name of Balon,
and it was the clear intention of the voter to vote for Francisco Balon.
It is also contended that ballot No. 113 of precinct No. 8 of Indan
should not have been counted for Francisco Balon. Upon
reexamination of this ballot we find that it reads "Pasico Balu". We
regard this as idem sonans with the name of the appellant.
It is claimed that ballot No. 110 of precinct No. 2 of Basud, reading
"Man Morio", should have been counted for the appellee Manuel
Moreno under the rule of idem sonans. We do not agree with this
contention.
Ballot No. 156 of precinct No. 1 of San Vicente and ballot No. 153 of
precinct No. 10 of Daet, reading "M. Manuel", are claimed by the
appellee Manuel Moreno. After a full consideration of the matter, the
court is unanimously of the opinion that these ballots were properly
rejected.
For the foregoing reasons, the motion for reconsideration is hereby
denied.
Avanceña, C.J., Street, Malcolm, Villamor, Ostrand, Villa-Real, Abad
Santos, Hull, Imperial and Butte, JJ., concur.
RESOLUTION
September 28, 1932
VICKERS, J.:
On September 22, 1932 the appellee filed a motion for leave to file a
second motion for reconsideration. This was supplemented on the
26th instant by a second motion for reconsideration. Notwithstanding
the fact that the motion for leave to file a second motion for
reconsideration was filed out of time, the court has considered the
second motion for reconsideration on its merits.
The second motion for reconsideration brings up again the same
questions which were raised in the first motion for reconsideration,
namely: (1) That there was an involuntary mistake committed by the
lower court in the addition of the votes that were adjudicated to the
protestee, Manuel Moreno — an involuntary mistake which remained
uncorrected when this case was brought to this court on appeal; (2)
that in the appreciation of certain ballots this court departed from the
long line of precedents laid down when ballots under the same
circumstances as those specified in the first motion for
reconsideration were brought before this court for consideration.
The attorneys for the protestee and appellee now rely only on the first
ground of their second motion for reconsideration. As already
indicated in our resolution of the first motion for reconsideration, the
records shows that in its decision of September 4, 1931 the lower
court found the protestee, Manuel Moreno, to be elected by a majority
of 40 votes; that on September 16, 1931 Manuel Moreno filed a
motion alleging that he had been elected by a majority of 45 votes
instead of 40 votes; that on September 18, 1931 the protestee,
Manuel Moreno, filed an amended motion alleging that he had been
elected by a majority of 49 votes; and that on September 23, 1931
the trial court after considering the protestee's motion for
reconsideration amended its decision and declared Manuel Moreno
to be elected by a majority of 43 votes instead of 40 votes.
On September 24, 1931 the court denied the protestee's amended
motion.
The attorneys for the protestee are not justified in maintaining that on
account of a mere clerical error the lower court allowed the protestee
three additional votes instead of five. The matter was brought to the
attention of the court, and the court decided that the correct plurality
of the protestee was 43 votes. The protestee filed a second motion, in
which he claimed a plurality of 49, but the court overruled the second
motion. The order of the court, which amends the decision and
declares Manuel Moreno to be elected by a plurality of 43 votes, does
not show how the court reached that result. In other words it does not
show that it was due to a clerical error. If the protestee was not
satisfied with the decision as amended, it was incumbent upon him to
appeal or at least to assign in his brief the alleged error now
complained of.
The protestee did not appeal from said orders of the trial court or
make any assignment of error in his brief in this court. For that reason
we overruled the first motion for reconsideration, and for the same
reason we now overrule the second motion for reconsideration.
Avanceña, C.J., Malcolm, Villamor, Ostrand, Villa-Real, Abad Santos,
Hull, Imperial and Butte, JJ., concur.